Why Kitzmiller is Not An "Activist" Decision

Since the charge of “judicial activism” is, predictably, being sounded by those who differ from Judge Jones in Kitzmiller, I thought it worthwhile to explain a little about what this term means. As I’ll explain, while there are cases where judges certainly engage in what can be called “activism,” it is more often the case that the charge of “judicial activism” is basically meaningless, or, worse, refers to the very concept of “judicial review” itself. Opposition to the institution of judicial review—led, in the modern day, by Robert Bork and his followers—is, in the views of many lawyers (and I’m one of them), a very, very serious threat to the American Constitution. The liberty and security of the people is in vastly more danger from legislative activism: the fact that legislatures routinely ignore their constitutional limitations, ride roughshod over the rights of the minority, do virtually anything a legislative majority demands of them, and then scream holy hell when a judge has the temerity to enforce the Constitution’s limits.

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